Rodriguez v. United States

United States District Court, D. Massachusetts

August 29, 2017

ALEX RODRIGUEZv.UNITED STATES OF AMERICA

MEMORANDUM OF DECISION

DATE
RYA W. ZOBEL, SENIOR UNITED STATES DISTRICT JUDGE.

Petitioner
Alex Rodriguez moves, pro se, this court to vacate and
correct his sentence pursuant to 28 U.S.C. § 2255. He
claims that in light of the Supreme Court's decision in
Mathis v. United States, 136 S.Ct. 2243 (2016), his
Massachusetts conviction for unlawful manufacture,
distribution, dispensing, or possession with intent to
manufacture, distribute, or dispense a Class A controlled
substance, Mass. Gen. Laws ch. 94C, § 32, does not
constitute a “serious drug offense” under the
Armed Career Criminal Act of 1984 (“ACCA”).
See 18 U.S.C. § 924(e)(1)-(2)(A). The
government maintains that Rodriguez procedurally defaulted
his claim, that his § 2255 motion is untimely, and that
his argument fails on the merits.

I.
Background

As
relevant to the instant motion, on April 13, 2010, Rodriguez
pleaded guilty to being a felon in possession of ammunition,
18 U.S.C. § 922(g)(1). On March 17, 2011, Rodriguez was
sentenced as an armed career criminal to fifteen years of
imprisonment, the mandatory minimum sentence under the ACCA.
His ACCA status was based on three prior convictions for
possession with intent to distribute a Class A drug.

Rodriguez
appealed his armed career criminal designation to the First
Circuit, arguing that his predicate drug convictions, all
under Massachusetts General Laws chapter 94C, § 32, were
not “serious drug offense[s]” because the
applicable maximum sentence for them differs depending on
whether a defendant was prosecuted in state superior court or
state district court. See Revised Brief of
Defendant-Appellant Alex Rodriguez at 4-7, 14-17, United
States v. Rodriguez, No. 11-1431 (1st Cir. Nov. 21,
2011). Specifically, if a defendant is prosecuted in state
superior court, then he or she faces a maximum term of
imprisonment of ten years, while a defendant prosecuted in
state district court faces a maximum penalty of two and a
half years of imprisonment; under the ACCA, a “serious
drug offense” is one for which the “maximum term
of imprisonment” is for “ten years or more,
” 18 U.S.C. § 924(e)(2)(A)(ii). The First Circuit
had previously held that a drug offense could constitute a
“serious drug offense” even with such divergent
maximum sentences. See United States v. Weekes, 611
F.3d 68, 72 (1st Cir. 2010); United States v. Moore,
286 F.3d 47, 48-50 (1st Cir. 2002). Nonetheless, Rodriguez
maintained that in light of a 2010 Supreme Court case,
Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010),
the First Circuit should reconsider its precedent. The First
Circuit rejected Rodriguez's argument and affirmed his
sentence. See Docket # 72. In reaching its decision,
the court noted that “in the district court,
defendant's counsel not only conceded his armed career
criminal status, he affirmatively stated that defendant was
correctly so designated. The government has made a powerful
case for waiver based on these facts. . . . Defendant's
designation as an armed career criminal is therefore arguably
unreviewable.” Id. at 1 (citations omitted).

On June
9, 2017, Rodriguez filed the instant § 2255 motion
seeking to vacate and correct his sentence in light of
Mathis. See Docket # 75.

II.
Standard

Under
28 U.S.C. § 2255, a federal prisoner “claiming the
right to be released upon the ground that [a] sentence was
imposed in violation of the Constitution or laws of the
United States . . . may move the court which imposed the
sentence to vacate, set aside or correct the sentence.”
28 U.S.C. § 2255(a). A prisoner seeking to challenge a
sentence under § 2255 must bring the motion within a
one-year limitations period, which, as relevant here, runs
from “the date on which the right asserted was
initially recognized by the Supreme Court, if that right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral
review.” 28 U.S.C. § 2255(f)(3).

III.
Discussion

Under
the ACCA, a defendant convicted of being a felon in
possession of a firearm or ammunition who has three prior
convictions “for a violent felony or a serious drug
offense, or both, committed on occasions different from one
another, ” faces a mandatory minimum sentence of 15
years of imprisonment. See 18 U.S.C. §
924(e)(1); see also Johnson v. United States, 135
S.Ct. 2551, 2555 (2015). A “serious drug offense”
includes “an offense under State law, involving
manufacturing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance . . . for
which a maximum term of imprisonment of ten years or more is
prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii).

Rodriguez
argues that one of his predicate convictions for possession
with intent to distribute a Class A controlled
substance[1] does not constitute a “serious drug
offense.” This is because, he says, a defendant can be
convicted under Massachusetts General Laws chapter 94C,
§ 32 for “dispensing” a controlled
substance, which he maintains is outside the ACCA definition
of a “serious drug offense.” He grounds his
argument in Mathis, which held, in the context of a
conviction under Iowa's burglary statute, that
“[b]ecause the elements of Iowa's burglary law are
broader than those of generic burglary, [the defendant]'s
convictions under that law cannot give rise to an ACCA
sentence, ” Mathis, 136 S.Ct. at 2257, even
though some of the means by which a defendant can commit
burglary under Iowa law fit within the generic form of the
offense, id. at 2249-50. Rodriguez suggests that
“[t]he dispensing element of [his] crime of conviction
criminalizes” more than what constitutes a
“serious drug offense” under the ACCA, and thus
cannot constitute a predicate conviction. Docket # 76, at 6.

A.
Procedural Default

Because
Rodriguez did not make his current challenge to his armed
career criminal status before this court[2] or in his appeal,
his claim is procedurally defaulted. Bucci v. United
States, 662 F.3d 18, 29 & n.10 (1st Cir. 2011).
“Where a defendant has procedurally defaulted a claim
by failing to raise it on direct review, the claim may be
raised in habeas only if the defendant can first demonstrate
either ‘cause' and actual ‘prejudice, ' .
. . or that he is ‘actually innocent.'”
Bousley v. United States, 523 U.S. 614, 622 (1998)
(citations omitted). Rodriguez makes no claim of actual
innocence. Indeed, he explicitly admitted his guilt at both
the Rule 11 hearing and the sentencing hearing. Nor does he
explicitly contend he can show cause and prejudice. To the
extent his motion suggests that he could not have made his
claim prior to the Supreme Court's decision in
Mathis, see Docket # 75, at 5, such an
argument would fail.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&ldquo;[T]he
existence of cause for a procedural default must ordinarily
turn on whether the prisoner can show that some objective
factor external to the defense impeded counsel&#39;s efforts
to comply with [a] procedural rule. Without attempting an
exhaustive catalog of such objective impediments to
compliance with a procedural rule, [the Supreme Court has]
note[d] that a showing that the factual or legal basis for a
claim was not reasonably available to counsel . . . would
constitute cause under this standard.&rdquo; Murray v.
Carrier, 477 U.S. 478, 488 (1986) (citing Reed v.
Ross, 468 U.S. 1, 16 (1984)); see Ross, 468
U.S. at 16 ...

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